Cousins v HAL & Anor [2008] QCA 49

SUPREME COURT OF QUEENSLAND CITATION: Cousins v HAL & Anor [2008] QCA 49 PARTIES: PETER COUSINS (applicant) v HAL (represented child) LY (second respondent) FILE NO/S: Appeal No 2046 of 2008 DC 117 of 2008 DIVISION: Court of Appeal PROCEEDING: Miscellaneous Application – Civil ORIGINATING COURT: Childrens Court at Brisbane DELIVERED EX TEMPORE ON: 7 March 2008 DELIVERED AT: Brisbane HEARING DATE: 7 March 2008 JUDGES: Fraser JA ORDER: 1. Application dismissed 2. Applicant to pay the respondents’ costs of the application to be assessed on the indemnity basis CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – CREATION OF NEW STATUTORY JURISDICTION – NECESSITY FOR EXPRESS ENACTMENT – where an application for a child protection order was adjourned by a Childrens Court magistrate – where the magistrate made an interim custody order pending the hearing of the application – where the child’s parents appealed to the Childrens Court against that interim custody order – where the Childrens Court allowed a stay of the interim custody order subject to various conditions pending the appeal to the Childrens Court – where the Childrens Court was constituted by a judge of the District Court – where the applicant appealed to the Court of Appeal seeking a stay of the order made by the Childrens Court – whether s117(2) of the Child Protection Act 1999 (Qld) confers a right of appeal to the Court of Appeal from the decision of the Childrens Court PROCEDURE – COURTS AND JUDGES GENERALLY – -- 1 of 13 -- 2 COURTS – DEFINITIONS – where s 118(3) of the District Court of Queensland Act 1967 (Qld) permitted appeals from the District Court to the Court of Appeal with leave of the Court of Appeal – where a judge of the District Court sat as a judge of the Childrens Court – whether the Childrens Court of Queensland established by the Childrens Court Act 1992 (Qld) may also be regarded as the District Court for the purposes of the right of appeal conferred by s 118(3) of the District Court of Queensland Act 1967 (Qld) ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant argued for a stay on the basis of a proceeding under the Judicial Review Act 1991 (Qld) – where the applicant contended that the judge who constituted the Childrens Court failed to take into account matters that the legislation required to be taken into account – where the applicant submitted that there were several findings by the Childrens Court judge that amounted to a finding that the application made below had no prospects of success – where the respondents contended that the findings of the Childrens Court Judge did not attract relief under the Judicial Review Act 1991 (Qld) as they did not extend to the judge’s authority to make any order or decision in the circumstances of the case – whether the findings of the Childrens Court Judge amounted to a finding that the respondent’s had no chance of success – whether the Childrens Court Judge ignored any precondition to her jurisdiction or disregarded the limits of her powers PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON THE INDEMNITY BASIS – where the application was misconceived because the Court of Appeal had no jurisdiction to hear the application – where so much had been established by an earlier decision of the Court of Appeal – whether in the circumstances an order for indemnity costs was warranted COUNSEL: S J Keim SC, with G K Waterman, for the appellant J P Benjamin for the represented child A Vasta QC, with D G Eliades, for the respondents SOLICITORS: Crown Solicitor of the Appellant Legal Aid for the represented child McMillan Criminal Law for the respondent FRASER JA: This is an application for a stay of an order made by the Childrens Court pending a proposed appeal to this Court. -- 2 of 13 -- 3 The application concerns a five-year old child. The applicant is an officer of the Department of Child Safety. The respondents are the child's parents. The child's father is not a resident or citizen of Australia. The child's mother has recently married and until very recently has lived with her husband. The child is separately represented in these proceedings. It is not necessary for the purposes of this application to discuss the facts in any detail, but it is necessary to say something of the proceedings that have preceded this application. On 21 February 2008 a Childrens Court Magistrate adjourned the applicant's application for a child protection order under section 54 of the Child Protection Act 1999 and made an interim custody order in favour of the applicant under section 67 of that Act. The application for the child protection order has not yet been determined and the parties could not say when that was likely to occur. There is no suggestion that the child would be in need of any protection were it not for the mother's relationship with her husband. The application by the Department and the orders made by the Magistrate were made because the evidence justified a concern, yet to be tested in final proceedings, that the husband has a history of sexual abuse against young girls and that the mother refused to entertain the possibility that there was any risk to the child. There was evidence before the Magistrate, again yet to be tested, to the effect that the child had indicated that the husband had been closely involved in caring for her and had slept in the same room for part of the time that the child has been in Australia. -- 3 of 13 -- 4 The child's parents appealed to the Childrens Court constituted by a District Court Judge against the Magistrate's order granting interim custody. That appeal has not yet been determined. The grounds of that appeal include the contention that there was insufficient evidence to justify the order for interim custody. The notice of appeal sought orders setting aside any interim custody order "granting custody of the child other than to the child's mother". On 27 February 2008, the Childrens Court constituted by a District Court Judge acceded to the parents’ application for a stay of the interim custody order pending determination of the appeal to that Court. The Judge made the stay subject to conditions designed to ensure that the child does not live in the same premises as, or have any unsupervised contact with, the husband. In the Judge's reasons for making that Order, her Honour concluded that there was an unacceptable risk of harm to the child if she were allowed to return to the home of the husband. Her Honour concluded that despite the apparent willingness of the mother to care and protect her child, she was not able properly to protect her whilst living with her husband - that because it was not possible for her to have the child constantly in her care in such a situation. The Judge therefore moulded a stay order which was designed to achieve the result that the interim custody order made by the Magistrate would be stayed pending the appeal, but only if the mother ceased to live in the same residence as her husband and only if the child would have no unsupervised contact with him. The order also includes provisions which authorise departmental officers to monitor compliance with those conditions. For example, it is a condition of the stay order that departmental officers may visit the mother's residence without any notice. I was informed -- 4 of 13 -- 5 that the child has been returned to her mother's care, pursuant to that order and on those conditions. The applicant has filed a notice of appeal to this Court against that order by the District Court Judge staying the operation of the interim custody orders. The application before me today is for a stay of that order made by the District Court Judge which conditionally stayed the operation of the Magistrate's interim custody order. In effect, the Department seeks to have the child returned to its custody and to maintain interim custody of the child thereafter, at least until determination of the appeal to this Court. This issue of interim custody has already been argued in two courts before today. The applicant's counsel acknowledged that there is a question whether this Court has any power to make the orders which are sought today by his client. I will therefore address that question first. Reference was made in submissions to three possible sources of power for this Court to grant a stay. It is convenient to deal first with s 119 of the Child Protection Act 1999 and r 761(2) of the Uniform Civil Procedure Rules 1999. Section 119 of the Child Protection Act 1999 provides: "(1) The appellate court may stay a decision appealed against to secure the effectiveness of the appeal." Rule 761(2) similarly empowers this Court to make a stay of an order pending an appeal to this Court. Both of those provisions apply only where there is an appeal to this Court. This Court is empowered to grant a stay only in aid of an appeal that may be brought before it. It is therefore necessary to identify the source of the applicant's right to appeal to this Court. -- 5 of 13 -- 6 A right of appeal exists, of course, only if it is conferred by legislation, see Fox v. Percy (2003) 214 CLR 118 at [20]. In that respect, rights of appeal are provided by s 117(2) of the Child Protection Act 1999. It provides: "A party to the proceeding for an application for a court assessment order or child protection order for a child may appeal to the appellate court against a decision on the application." "Appellate court" is defined in the Act to mean, so far as is presently relevant: "(a) for a decision on an application for ... a child protection order ... - (i) if the decision was made by the Childrens Court constituted by a judge - the Court of Appeal; or (ii) if the decision was made by the Childrens Court constituted in another way - the Childrens Court constituted by a judge;" The Magistrate's decision was made pursuant to s 67(1) of the same Act. It provides: "(1) On the adjournment of a proceeding for a court assessment order or child protection order, the Childrens Court may make all or any of the following orders - (a) an interim order granting temporary custody of a child - (i) for a court assessment order - to the chief executive; or (ii) for a child protection order - to the chief executive or a suitable person who is a member of the child's family. (b) an interim order directing a parent of the child not to have contact (direct or indirect): (i) with the child; or (ii)with the child other than when a stated person or a person of a stated category is present." Subsection 67(2) provides that the order has effect for the period of the adjournment. -- 6 of 13 -- 7 Section 67 therefore confers power to make interim custody orders, "on the adjournment of a proceeding for" a child protection order and it describes such an order as being, "for a child protection order". Those provisions treat an interim custody order under s 67(1) as one which is made on the application for the child protection order. It follows that, even though s 67 was the source of power to make the interim custody order, the Magistrates decision was an order "on the application" for the child protection order, within the meaning of s 117(2). An appeal against the Magistrates Order therefore lay to the Childrens Court constituted by the Judge. The question here is different though. The appeal to this Court is not an appeal from the decision of the Magistrate. It is an appeal from the decision of the Judge to order a stay of the Magistrate's decision. Such an appeal is, in the words of s 117(2), not an appeal "against the decision on the application" for the child protection order. That is, in my opinion, the plain effect of the Act. I am also bound to reach that conclusion by this Court's decision in SBD v. Chief Executive Department of Child Safety [2007] QCA 318: Keane JA, with whom Muir JA and Lyons J agreed, concluded, at [18], that the reference in s 117(2) of the Act to "appeal to the appellate court against the decision on the application" is to a decision upon the original application for a court assessment order or child protection order. His Honour held that it does not refer to a decision on appeal from such a decision. As I have mentioned, that conclusion was dictated by the plain words of the Act, which remains in the form it was in when SBD was decided. Counsel for the child contended that a contrary conclusion was arguable. He contended that the phrase, "on an application" in the definition of "appellate court" was broad enough -- 7 of 13 -- 8 to comprehend an appellate decision about the application. I interpolate that those are my words not his but it was, I think, the gist of his contention. If this were an appeal de novo, that is to say if it were a fresh hearing of the application in the District Court, that proposition might be arguable. It is, however, not such an appeal. Section 120 of the Act provides: "(2) An appeal against another decision must be decided on the evidence and proceedings before the Childrens Court. (3) However, the appellate court may order that the appeal be heard afresh in whole or part." The parties' counsel were not disposed to contend that an appeal under s 120(2) was an appeal de novo. In any event, counsel for the child properly acknowledged the binding force of SBD. It follows that I must conclude that s 117(2) does not confer any right of appeal to this Court from the decision of the Judge who constituted the Childrens Court. There is no other provision of the Act that confers a right of appeal to this Court from such a decision. Reference was made during the course of argument to s 118(3) of the District Court of Queensland Act 1967. That provision is as follows: "3. A party who is dissatisfied with any other judgment of the District Court, whether in the Court's original or appellate jurisdiction, may appeal to the Court of Appeal with the leave of that Court." Section 118 authorises appeals only from the District Court. That is a reference, of course, to the District Court of Queensland established by Part II of The District Court of Queensland Act 1967. That Court is a court of record constituted by any of the District Court Judges. It is to be distinguished from the Childrens Court, which is a separate Court established as a court of record by section 4 of The Childrens Court Act 1992. The Childrens Court is -- 8 of 13 -- 9 not constituted by any of the District Court Judges. Rather, section 5 of that Act provides that the members of the Childrens Court are, so far as Judges are concerned, a Childrens Court Judge or, and only if such a Judge is not available, a District Court Judge. That on occasions where a Childrens Court Judge is not available the Court may be constituted by a District Court Judge does not establish an identity between the Childrens Court and the District Court. The Courts are established by separate legislation and have a different, albeit overlapping, membership. Ultimately, the question is whether the Childrens Court of Queensland established by The Childrens Court Act 1992 may also be regarded as "the District Court" for the purposes of the right of appeal conferred by s 118(3) of the District Court of Queensland Act 1967. This question was adverted to in SBD, in which Keane JA observed that it was arguable that the Childrens Court constituted by a Judge was not the District Court for that purpose. It is necessary to decide the point here. For the reasons I have given, the conclusion is unavoidable, in my opinion, that these are different Courts. It follows that I must conclude that the Childrens Court is not the District Court for the purposes of s 118(3), so that no appeal lies from a decision of the Childrens Court, constituted by a District Court Judge, under s 118(3) of the District Court of Queensland Act 1967. I would add that in the case of an appeal pursuant to section 118(3) of the District Court Act, no appeal is instituted until after leave has been sought and obtained - see Jimenez v J Form Contracting Pty Ltd [1993] 1 QR 610 at 612, following Johns v Johns [1998} 1 QR 138. No such leave has been granted. It follows that the decision below could not be characterised as a decision appealed against in terms of s 119 of the Child Protection Act 1999 or an order appealed from in terms of rule 761(2) of UCPR. That being so, neither provision authorises the grant of a stay. -- 9 of 13 -- 10 So much was decided in relation to rule 761(2) by the decision of this Court to that effect in Speakman v Evans [2002] QCA 293. The same view has been adopted in other statutory contexts (see Bell v Bay-Jespersen [2004] 2 QR 335 and Woolworths Limited v Maryborough City Council [2005] 2 QR 283 at 6). Nor does the inherent jurisdiction authorise this Court to stay the decision of the Childrens Court where there is no basis for appeal or other proceedings in this Court. The third basis proposed for the stay was said to be found in the possibility of proceedings under the Judicial Review Act 1991. There are now no such proceedings. It was indicated on behalf of the applicant that, if necessary, such a proceeding might be filed. Ordinarily, any such proceeding should be made to the Trial Division rather than to this Court. More substantially, though, the applicant was not able to put forward any reasonably arguable basis for such a proceeding. The basis which was argued for judicial review proceedings was a claimed jurisdictional error by the Judge who constituted the Childrens Court, principally in failing to take into account matters that the legislation required to be taken into account. That is not, in itself, sufficient to establish jurisdictional error. In Craig v South Australia (1995) 184 CLR 163 at 177, it was put in these terms: "An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist." It was also said, at 177-178, that: "Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior Court will exceed its authority and fall into jurisdictional error if -- 10 of 13 -- 11 it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case." Counsel for the applicant correctly recognised that jurisdictional error is not established merely by identification of an argument that a Judge has failed to take into account some matter which the statute requires to be taken into account in the exercise of a discretion. The limitation is that what was not taken into account must be that which gives authority to make any order or decision in the circumstances of the case. It was submitted that in this case there was such an error and that there was such a misconstruction of the statute as to lead to a misconception of the function by the Judge. In that respect, reliance was placed upon the summary in the first ground of the notice of appeal. In that ground it was contended that the Judge made findings which amounted to an implied finding that the prospects of success by the mother on her appeal to that Court were poor. It was put that the appellant mother's substantive ground of appeal was that she was willing and able to protect the child from harm whilst her husband was living with her, and that so much was found by the Judge to be the ground of appeal. It was put that the Judge also found that there was an unacceptable risk of harm to the child if she were allowed to return to the home of the husband. It was also put that despite the apparent willingness of the mother to care for and protect the child, she was not able properly to protect the child whilst living with the husband, as was found by the Magistrate and by the Judge. It was also put that the Judge found that the mother had a blind belief in the honesty of her husband. The difficulty with relying upon those contentions for the argument that the Court lacked jurisdiction is that they do not amount to a finding that the mother has no prospects of success, or no reasonable prospects of success, nor even a finding that the mother has no good prospects of success in the appeal. That is because the orders that the District Court -- 11 of 13 -- 12 Judge is empowered to make on the appeal are not limited to orders requiring the return of the child to the mother in a situation where she still lives with her husband. The findings go no further than suggesting that the mother has poor prospects of success in the appeal if she lives with her husband after the return of the child; but the Judge's powers extend to the making of an order which would contain conditions of the kind that have been imposed in the stay order. The contrary was submitted on behalf of the child with reference to s 67 and s 67(1)(b), but my attention was drawn, quite correctly, to s 68(1)(c) and s 68(4). At the very least it is fairly arguable that those provisions authorise broader conditions than those which are specified in s 67. There is also, in my opinion, no basis for thinking that the Judge ignored any precondition to her jurisdiction or disregarded the limits of her powers. It was contended that the order for a stay was not one which was designed to secure the effectiveness of the appeal to the District Court, but it plainly was. The desired result of the appeal was the return of the child to the mother and the stay secured that on an interim basis and upon stringent conditions. In my opinion nothing has been shown to suggest that the District Court Judge lacked jurisdiction to make the order. That being so, there is no basis for the invocation of this Court's jurisdiction under the Judicial Review Act 1991 or, as I have said, by way of appeal. I would therefore dismiss the application for a stay. FRASER JA: The respondents to the application apply for indemnity costs. They make the point, validly, that the only application before the Court is one which is premised on the notice of appeal that was filed on behalf of the applicant. The notice of appeal was premised upon the assumption that there is a right of appeal to this Court, an assumption -- 12 of 13 -- 13 shown to be incorrect by the decision of this Court in SPD v Chief Executive Department of Child Safety [2007] QCA 318. It is correct, in my view, to say that there was no reasonable basis for the application up to the point at which the applicant's counsel sought to agitate questions of jurisdiction under the Judicial Review Act 1991. I would not be prepared to say that the application proposed under the Judicial Review Act 1991 was so lacking in merit that, had it been brought and lost, an order for indemnity costs would have been justified; but given that that application was only agitated for the first time in submissions, firstly in writing sent through as an appropriate courtesy last night to counsel for the respondents, and then in oral submissions this morning at 9 a.m. when the matter was called, that does not seem to me to be a sufficient basis for denying indemnity costs. In my opinion, the application was misconceived because this Court has no jurisdiction and so much had earlier been established by a decision which was, of course, binding on me. I therefore order that the applicant pay the respondents' costs of the application to be assessed on the indemnity basis. -- 13 of 13 --